Citation Nr: 9815138
Decision Date: 05/15/98 Archive Date: 05/29/98
DOCKET NO. 96-22 884 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to service connection for Meniere’s disease.
2. Entitlement to an increased evaluation for residuals of
right ear labyrinthectomy, currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. McGovern, Associate Counsel
INTRODUCTION
The veteran had active service from July 1938 to October
1941.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from the September 1995 rating decision of
the Reno, Nevada Department of Veterans Affairs (VA) Regional
Office (RO), which denied entitlement to service connection
for Meniere’s disease. The matter is also on appeal from the
March 1997 supplemental statement of the case which denied an
increased evaluation for residuals of a right
labyrinthectomy.
By rating decision dated in August 1983, the RO denied
entitlement to service connection for Meniere’s disease
because there was no evidence of a relationship between the
veteran’s service or service-connected disorders and the
claimed Meniere’s disease with dizziness. It is noted that
the veteran’s service-connected disorders at that time
included residuals of labyrinthectomy; otitis media, chronic,
suppurative and mastoiditis, postoperative mastoidectomy,
right; and right ear impaired hearing. The veteran was
informed of this decision by letter dated in September 1983.
In a February 1984 statement in support of claim, the veteran
requested “reconsideration” of the August 1983 rating
decision which denied service connection for Meniere’s
disease. By rating decision dated in April 1984, the RO
again denied service connection for Meniere’s disease and the
veteran was informed of this decision by letter also dated in
April 1984.
In November 1994, the veteran again submitted a claim for
service connection for Meniere’s disease. By letter dated in
December 1994, the RO informed the veteran that this issue
had previously been denied, that he had been notified of the
denial in September 1983, that he did not disagree with this
denial, and that the prior rating decision which denied
service connection for Meniere’s disease was final. The RO
informed the veteran that, in order to reopen his claim he
must submit new medical proof showing that Meniere’s disease
was caused or made worse by his military service and that he
should send records of treatment from separation to present.
By rating decision dated in September 1995, the RO denied
service connection for Meniere’s disease. The RO noted that
the veteran had reopened his claim for service connection for
Meniere’s disease, that the new treatment records obtained
did not show the onset of Meniere’s disease in service, and
that this issue had previously been denied.
The veteran filed a timely notice of disagreement with the
September 1995 rating decision and in May 1996 the RO issued
a statement of the case which addressed the issue of whether
new and material evidence had been submitted to reopen the
claim for service connection for Meniere’s disease. The
veteran perfected his appeal with respect to this issue in a
timely manner. A March 1997 supplemental statement of the
case also addressed the issue of whether new and material
evidence had been submitted to reopen the claim for service
connection for Meniere’s disease.
The Board notes that the veteran’s February 1984 statement in
support of claim constitutes a timely notice of disagreement
with respect to the RO’s August 1983 denial of entitlement to
service connection for Meniere’s disease and that the RO did
not issue a statement of the case which addressed this issue.
See 38 C.F.R. §§ 19.26, 19.29, 20.201 (1997). Therefore, the
Board notes that the August 1983 and April 1984 rating
decisions never became final and a de novo review of the
issue of entitlement to service connection for Meniere’s
disease must be conducted.
In his April 1997 VA Form 9, Appeal to Board of Veterans’
Appeals, the veteran asserted that his hearing had decreased
“a great deal” in the last few years. The Board notes that
it appears that the veteran is seeking an increased
evaluation for his service-connected right ear hearing loss
and that he may also be seeking to reopen his claim for
service connection for left ear hearing loss. This matter is
referred to the RO for clarification and appropriate
development.
REMAND
The veteran contends he has been diagnosed with Meniere’s
disease, that he has had the symptoms of Meniere’s disease
since service, and that his current Meniere’s disease is
etiologically related to service and the perforated eardrum
incurred therein. Therefore, he asserts that service
connection for Meniere’s disease is warranted. The veteran
also contends that his service-connected residuals of right
ear labyrinthectomy are more disabling that the current 30
percent evaluation reflects, thereby warranting an increased
rating.
In April 1998, the representative submitted VA outpatient
treatment records dated from December 1996 to April 1998
directly to the Board. It is noted that the RO has not had
the opportunity to consider these records. As the veteran
has not waived initial RO consideration of this evidence, the
Board’s evaluation of the evidence would constitute a
violation of due process. See 38 C.F.R. § 20.1304(c) (1997).
A review of the record reveals that the veteran has been
diagnosed with Meniere’s disease and that a June 1994 VA
outpatient treatment record shows that the veteran was
referred for an ear, nose, and throat consultation to “rule
out Meniere’s disease post removal of labyrinthus, part of
petrous bone, and decreased hearing acuity.” The Board
notes that the issue of entitlement to service connection for
Meniere’s disease, claimed as secondary to the veteran’s
service-connected residuals of right labyrinthectomy, right
ear hearing loss, and chronic suppurative otitis media and
status post mastoidectomy with involvement of the petrous
bone, has been raised by the record and should be addressed
by the RO. See 38 C.F.R. § 3.310 (1997).
At a November 1996 VA audiological examination, the veteran
reported that he had had right ear hearing loss since 1939,
that he had had seven operations on his right ear, that he
had right-sided mastoid pain, that he had occasional mild
drainage from the right ear, and that he had had dizziness
and loss of balance for the past 40 years. The veteran also
reported that he had had frequent black outs, dizziness, and
nausea for approximately 40 years. The veteran stated that
he had had bilateral periodic tinnitus for approximately 40
years, that it sounded like a high-pitched ring/whine, that
it fluctuated in intensity, that it occurred almost daily and
lasted about 30 minutes to three hours, and that it affected
his life in that when it started he had to sit down and try
to relax until it stopped. The examiner noted that the
veteran had profound flat right ear hearing loss and that
speech discrimination could not be tested in the right ear.
In a December 1996 examination report, J. Lubritz, M.D.
stated that the veteran reported that he had had surgeries
for several ear disorders, to include Meniere’s disease. It
was noted that the veteran stated that he had hearing loss,
balance problems, and black outs. Dr. Lubritz examined the
veteran and the assessment was that the veteran had permanent
disability subsequent to his mastoidectomy resulting in
hearing loss and subsequent to his labyrinthectomy resulting
in permanent disequilibrium. Dr. Lubritz concluded that the
veteran’s black outs did not appear to be related to his
middle ear disease, that these sounded more like syncopal
episodes, and that, as the veteran reported that his blood
pressure tended to be very low, this may be blood pressure
related.
As service connection is currently in effect for residuals of
right labyrinthectomy, right ear hearing impairment, and
chronic suppurative otitis media and status post
mastoidectomy with involvement of the petrous bone, and as
the record includes diagnoses of Meniere’s disease, the Board
finds that a current comprehensive VA examination is
warranted to determine the nature and etiology of any current
Meniere’s disease.
A review of the claims file reveals that the veteran has
reportedly received treatment for his right ear disability at
VA medical facilities in Las Vegas, Nevada; San Diego and La
Jolla, California; and Phoenix, Arizona. Las Vegas, Nevada
VA outpatient treatment records reveal that the veteran was
referred to the San Diego, California ear, nose, and throat
clinic on several occasions and that, in June 1994, he was
referred to that clinic to rule out Meniere’s disease, post
removal of labyrinthus, part of petrous bone, and decreased
hearing acuity. At the February 1998 Travel Board hearing,
the veteran testified that a lot of evidence that should be
in the claims file had not been obtained, that he had been
treated by several doctors in San Diego and these records
were not in the claims file, and that he had been diagnosed
with Meniere’s disease at least twice in 1996 and 1997.
Travel Board hearing transcript (TB Tr.) at 7. He also
asserted that a physician in Las Vegas told him that he had
had Meniere’s disease since his ear problems first started.
TB Tr. at 6. In an April 1997 VA Form 9, Appeal to Board of
Veterans’ Appeals, the veteran reported that, in December
1996, a physician told him that the Meniere’s disease did
exist in 1939. As the veteran has asserted that many
relevant medical records have not been associated with his
claims file, the Board finds that the RO should attempt to
obtain all pertinent records that have not already been
associated with the claims file, from all private physicians
and from the VA facilities in Las Vegas, Nevada; San Diego
and La Jolla, California; and Phoenix Arizona.
In order to ensure that the record is fully developed, this
case is REMANDED to the RO for the following:
1. The RO should contact the veteran and
request that he identify all treatment or
evaluation he has received for his
service-connected residuals of right
labyrinthectomy since 1993 and for
Meniere’s disease since service. The RO
should specifically request that the
veteran identify all medical
professionals who related Meniere’s
disease to his active service or to a
service-connected disability. The
veteran should also be afforded the
opportunity to provide evidence in
support of an extraschedular rating for
his service-connected residuals of right
labyrinthectomy, such as medical
evidence, records from his employer, or
other evidence showing marked
interference with employment, evidence of
frequent periods of hospitalization, etc.
After obtaining the appropriate
authorization, the RO should attempt to
obtain any medical records identified
that are not already in the claims file,
particularly all records from the VA
medical facilities in Las Vegas, Nevada;
San Diego and La Jolla, California, and
Phoenix Arizona. Any records obtained
should be associated with the claims
folder.
2. The veteran should then be afforded a
comprehensive VA examination by an
appropriate specialist, to determine the
nature and etiology of any Meniere’s
disease and the extent of the residuals
of right ear labyrinthectomy. The
veteran’s claims folder and a separate
copy of this remand should be made
available to the examiner, the receipt of
which should be acknowledged in the
examination report. Any indicated
studies should be performed and the
reports thereof should be attached to the
examination report. The veteran’s
history, current complaints, and
examination findings must be reported in
detail by the examiner. The examiner
should specifically state whether the
veteran currently has Meniere’s disease
and, if not, whether, based on a review
of the record, it appears that the
veteran ever had Meniere’s disease. The
etiology of the Meniere’s disease, if
diagnosed, should be clearly identified.
After reviewing the narrative portion of
this remand and the claims folder,
including the service medical records,
the examiner should comment as to whether
any Meniere’s disease found is as least
as likely as not related to any findings
in service or to the service-connected
residuals of right labyrinthectomy, right
ear hearing loss, or chronic suppurative
otitis media and status post
mastoidectomy with involvement of the
petrous bone. Finally, the examiner
should provide an opinion regarding the
effect of the veteran’s service-connected
residuals of right labyrinthectomy alone
on employability. The examiner should
provide a comprehensive report, which
addresses the aforementioned and provides
the rationale for any conclusions.
3. The RO should review the examination
report to ensure that it is in complete
compliance with this remand, including
all of the requested findings and
opinions. If not, the report should be
returned for corrective action.
4. The RO should then readjudicate the
claims with consideration of all
pertinent law, regulations, and United
States Court of Veterans Appeals (Court)
decisions, including 38 C.F.R. §§ 3.310,
3.321(b)(1); Floyd v. Brown, 9 Vet. App.
88 (1996); and Savage v. Gober, No. 94-
503 (U.S. Vet. App. Nov. 6, 1997). If
the claims remain in a denied status, the
veteran and his representative should be
provided with a supplemental statement of
the case which includes all pertinent law
and regulations and a full discussion of
action taken on the veteran’s claims,
consistent with the Court’s instructions
in Gilbert v. Derwinski, 1 Vet. App. 49
(1990). The applicable response time
should be allowed.
The case should then be returned to the Board, if in order,
after compliance with the customary appellate procedures. No
action is required of the veteran until she is so informed.
The Board intimates no opinion as to the ultimate decision
warranted in this case, pending completion of the requested
development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
- 2 -